The Champion

March 2009 , Page 14 

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To Speak or Not to Speak: Can Pre-Miranda Silence be Used as Substantive Evidence of Guilt

By Christopher Macchiaroli

On June 13, 1966, the U.S. Supreme Court issued its decision in Miranda v. Arizona.1 Like a tidal wave, Miranda changed the manner in which custodial interrogations were to take place in America. As a result of Miranda, any suspect taken into custody and subject to interrogation was required to receive warnings of his or her constitutional rights.2 These warnings — now prominently known as “Miranda warnings” — were considered necessary in order to remedy the improper conduct of law enforcement officers during custodial interrogations. As described in police training manuals, such conduct was bent on creating an atmosphere suggesting “the invincibility of the forces of the law,”3 where interrogations would last for “several hours[,] pausing only for the subject’s necessities in order to avoid a charge of duress.”4 To highlight isolation and unfamiliar surroundings, manuals instructed law enforcement officers “to display an air of confidence in the suspect’s guilt,” and to maintain an ap

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